11 September 2001>News Stories>Powell Asks Bush to Reverse Stand on War Captives
Asks Bush to Reverse Stand on War Captives
Katharine Q. Seelye . NYTimes . 27 January 2002
WASHINGTON, Jan. 26 Breaking with other cabinet officials, Secretary of State Colin L. Powell has asked President Bush to declare that the United States is bound by the Geneva Conventions in its treatment of the captives in Afghanistan and at Guantánamo Bay, Cuba, administration officials said today.
Seeking a review of a presidential decision made nine days ago, when the administration determined that the captured fighters were not prisoners of war, Mr. Powell and his lawyers at the State Department urged Mr. Bush to affirm that the international law of war does govern the United States' treatment of all captives of the Taliban military and the terrorist network Al Qaeda.
Mr. Powell's unusual request surfaced today when a White House memorandum on the question was reported by The Washington Times.
Mr. Powell asked for the review after allies and human-rights advocates suggested that the United States had skirted some of the Geneva Conventions' requirements as it decided the legal status of the captives. But it was not clear what concrete changes in their treatment he was seeking.
The administration has said that it is treating the prisoners humanely and in accord with many of the Geneva Conventions. But it is reluctant to confer prisoner-of-war status officially because it wants flexibility in interrogating the prisoners and deciding what to do with them.
In his memorandum, the White House counsel, Alberto Gonzales, advised Mr. Bush that "arguments for reconsideration and reversal are unpersuasive." He said that the office of the general counsel at the Justice Department agreed with him.
He added that Mr. Powell contends that the Geneva Conventions "does apply to both Al Qaeda and the Taliban," and added, "I understand, however, that he would agree that Al Qaeda and Taliban fighters could be determined not to be prisoners of war (P.O.W.'s) but only on a case-by- case basis following individual hearings before a military board."
Senior administration officials gave varying interpretations of Mr. Powell's views on the captives.
"The debate is not actually over whether these people are prisoners of war," one administration official said. "They are not. The debate is why they are not prisoners of war."
Another official said, "Powell has never argued and never advocated that they should be designated as P.O.W.'s." The official added that Mr. Powell's question was whether the Geneva Conventions controlled how the United States determined the status of the prisoners.
"The position of the State Department is that the Geneva Conventions do apply," this official said. "And it is in our political interests around the world to make sure the conventions do apply, but that these people don't qualify under the Geneva Conventions to be prisoners of war."
President Bush has already decided "that they are not P.O.W.'s, and that is not being reconsidered," said Sean McCormack, a spokesman for the National Security Council. "There are some issues still being debated among the lawyers. It should surprise no one that we are working through these complex legal issues because this is a new kind of conflict. Terrorism is different, and it is hard to know how to apply existing international norms to this new kind of conflict."
But lawyers and legal experts outside the administration argue that the president cannot decide this by fiat, that the prisoners must be screened through formal tribunals.
Among other protections under international law, prisoners of war are not required to cooperate with interrogators, are allowed to elect their own leaders in prison camps, and are to be allowed to return home after the cessation of hostilities unless convicted of war crimes or other offenses.
Mr. McCormack also said that all the parties who were asked to respond to Mr. Powell's reconsideration of the issues had responded today. They included Vice President Dick Cheney; Defense Secretary Donald H. Rumsfeld; Attorney General John Ashcroft; the director of central intelligence, George Tenet; and Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff.
The decision on how to proceed is to be taken up Monday by the National Security Council, with Mr. Bush in attendance.
Other administration officials said that Mr. Rumsfeld had also asked the president to review the question of whether the Geneva Conventions apply to these prisoners. While Mr. Rumsfeld's views on the issue is unclear, he was apparently reflecting concerns of the Joint Chiefs of Staff, which relies on the Geneva Conventions to protect captured Americans.
Some officials said that the memorandum quoted by The Washington Times was only a draft and that it misstated some of Mr. Powell's views; nonetheless, Condoleezza Rice, Mr. Bush's national security adviser, distributed it to other cabinet officials on Friday seeking their views and said the matter would be discussed Monday.
In a brief telephone interview tonight, Ms. Rice said that Mr. Bush had made his decision not to regard the captives as prisoners of war under the Geneva Conventions on Jan. 18 and based on a legal opinion from the Justice Department.
Mr. Bush, she said, knew that the State Department's legal counselor believed that the United States was bound by the Geneva Conventions regarding Taliban and Qaeda prisoners. After Mr. Bush made the decision on the prisoner-of-war issue, he asked Ms. Rice to call Secretary Powell, who was traveling. Mr. Powell asked that the president look at "other considerations," apparently referring to the political implications of rejecting the Geneva Conventions for the antiterror coalition.
In the view of human-rights groups, the status of the prisoners is especially important because it determines how they can be interrogated.
"If they are prisoners of war, there are restrictions on how they can be interrogated," said William F. Schulz, executive director of Amnesty International U.S.A. "P.O.W.'s are required to provide only name, rank and serial number. If these P.O.W.'s were in U.S. territory and were being interrogated about a war crime, they would have the right to an attorney. The fact that they are in Cuba makes that question ambiguous."
The Geneva Conventions clearly state that if there is any doubt over a prisoner's status, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
The administration argues that there is no doubt.
The United States has faced international criticism over its handling of the prisoners. A Congressional delegation visited the prison camp on Friday and its members said the treatment of the prisoners was humane.
Senator James M. Inhofe, an Oklahoma Republican who visited the camp,
said he disagreed with Mr. Powell's view that the Geneva Conventions should
be invoked, saying it would wrongly imply that the captives deserve prisoner
of war status.